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Nimety v. Schilling

United States District Court, W.D. Virginia, Roanoke Division

March 10, 2017

LEVI SETH NIMETY, Plaintiff,
v.
FRED SCHILLING, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON, UNITED STATES DISTRICT JUDGE.

         Levi Seth Nimety, a Virginia inmate proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 naming numerous administrative and medical staff of the Virginia Department of Corrections (“VDOC”) and Keen Mountain Correctional Center (“KMCC”) as defendants. Nimety's claims involve medical treatment by four doctors and a mental health practitioner, and numerous staff's review of various administrative forms. Defendants Crowder, Kiser[1], Lester, Owens, Schilling[2], Webb, and Widener (collectively, “correctional defendants”) filed a motion to dismiss. Defendants Dr. Edsen, Dr. Lard, and Dr. Osemobor (collectively, “doctor defendants”) and defendant Dr. Phillips also filed motions to dismiss. Defendants Nurse Bucklen and Nurse Whited (collectively, “nurse defendants”) filed a motion for summary judgment.[3] Nimety responded to each motion, and the matter is ripe for disposition.[4] Upon consideration of this action, I will grant defendants' motions.

         I.

         Nimety began experiencing pains and poor circulation in his legs, ankles, and feet while incarcerated at a regional jail in 2012. Nimety was diagnosed with Restless Leg Syndrome and was prescribed, inter alia, 600 milligrams of ibuprofen. Nimety did not believe the prescription was effective.

         Nimety was transferred to two VDOC facilities in early 2013. Nimety told the medical staff at each facility that the ibuprofen was ineffective and that he disagreed with the Restless Leg Syndrome diagnosis. A facility doctor discontinued the ibuprofen and ordered an ankle-brachial index test to diagnose the bilateral foot pain. The test results were within normal limits. Nimety injured his left shoulder while lifting weights in June 2013 just before being transferred away from the prison.

         A.

         Dr. Phillips' and the doctor defendants' involvement with Nimety began after Nimety was transferred to KMCC on August 14, 2013, while Nimety still experienced pains in his lower extremities and left shoulder. On September 10, 2013, Nimety had an appointment with defendant Dr. Phillips about leg and ankle pains. Dr. Phillips diagnosed Nimety with plantar fasciitis, ordered X rays of his feet, gave him exercises to complete, and instructed him to buy ibuprofen from the commissary. The X-ray results were unremarkable, noting normal joint spaces and no fracture.

         On January 2, 2014, Nimety went to the medical department and received 200 milligrams of ibuprofen, twice daily, for five days. A nurse told him to notify medical staff if the symptoms did not improve or worsened.

         On March 4, 2014, Nimety met with Dr. Phillips, explaining his “severe and persistent” leg pain despite complying with all her prior instructions. Dr. Phillips diagnosed him with Peroneal Tendonitis, ordered various tests, and prescribed ibuprofen, ostensibly, at 500 mg for one month. The test results were within normal limits. Nimety did not return to Dr. Phillips about lower extremity pains by the time he left KMCC around February 2015. However, he did see Dr. Phillips for his left shoulder.

         On November 18, 2014, Nimety met with Dr. Phillips for left shoulder pain. Dr. Phillips diagnosed Nimety with a shoulder strain, ordered X-rays, told him to obtain pain medication from the commissary, and gave him a rehabilitatory exercise handout. The X-ray report said, “No acute bony lesions are seen. Faint calcific density of the supraspinatus tendon suggestive of tendonitis is noted. Mild arthritis of the AC joint is noted.” The radiologist's impression was “mild degree of supraspinatus calcific tendonitis and mild arthritic change of the Acromioclavicular joint are noted.”

         On January 13, 2015, Nimety met with Dr. Phillips for left shoulder pain, explaining that he could not complete the exercises because he did not have the proper exercise equipment. Dr. Phillips told Nimety that prison security staff would not approve the equipment and that he could complete the exercises with a sock and a weighted pile instead. Dr. Phillips diagnosed Nimety with “chronic tendonitis / shoulder pain” and ordered a cortisone injection. Nimety received the injection a week later and found it to be ineffective. This appointment was Dr. Phillips' last contact with Nimety.

         On February 12, 2015, Nimety met with defendant Dr. Edsen about leg and foot pains. Nimety explained his symptoms, the past tests and treatments, and his belief that it was a vascular problem. Dr. Edsen disagreed, thinking it was a neuropathological problem, and ordered “HIV, Vit B12, Folate, TSH, [and] EMG/NCS” tests.

         On March 12, 2015, Nimety met with Dr. Edsen about left shoulder pain. Nimety explained that the cortisone shot was ineffective and that he was unable to do the exercises prescribed by Dr. Phillips without resistance bands and a five-pound weight bar. Dr. Edsen prescribed 600 milligrams of ibuprofen, and two new rehabilitatory exercise handouts - one for an Acromioclavicular joint injury and one for a “regular” shoulder. Dr. Edsen denied Nimety's requests for an MRI and for a specialist consultation.

         The EMG and NCS tests were done on March 24, 2015, and the results were within normal limits. The HIV, Vit B12, Folate, and TSH tests were not done.

         On May 12, 2015, Nimety met with Dr. Edsen for left shoulder and leg pains. Nimety told her that 600 milligrams of ibuprofen was ineffective and that he could not complete the newer exercises because he still did not have the proper equipment.[5] Dr. Edsen denied his requests for an MRI, a specialist consultation, and a bottom bunk assignment, but Dr. Edsen increased the ibuprofen to 800 milligrams and approved his request for a second ankle-brachial index test. This test showed results within normal limits. This appointment was Dr. Edsen's last contact with Nimety.

         On September 15, 2015, Nimety met with Dr. Lard for shoulder, leg, and foot pains. Nimety explained the prior tests and treatments and his symptoms. Dr. Lard prescribed 500 milligrams of Naproxen and gave Nimety the same handout for rehabilitatory exercises he allegedly could not do because he did not have the proper equipment. Dr. Lard denied Nimety's requests for an MRI, a specialist consultation, and a bottom bunk assignment. Nimety alleges that Dr. Lard refused to address the leg pain. This appointment was Dr. Lard's first and last contact with Nimety.

         On January 28, 2016, Nimety met with Dr. Osemobor about injuries to his right shoulder and neck. Nimety explained that he had fallen while climbing a bunk five days earlier. Dr. Osemobor ordered X-rays, did not order medication, and denied Nimety's request for a bottom bunk assignment. Nimety does not describe any further involvement by Dr. Osemobor.[6]

         B.

         On December 8, 2013, Nimety met with a mental health staffer about anxiety caused by his leg, foot, and shoulder pains. The staffer gave Nimety a ...


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